Three paths at a glance
Most separating parents do not need a court order. Most do not even need a lawyer to draft anything formal. The three paths below run from the most flexible and least adversarial to the most formal and most contested. Where it is safe and possible, the preference is always to stay at the top of this list.
The colloquial term "Parenting Agreement" is sometimes used. The legal term in the Family Law Act 1975 is "Parenting Plan" (section 63C). This page uses the legal term throughout.
Preparing for the joint session
Parents who arrive at mediation having thought through what they actually want, what is working, and where they already agree tend to have shorter, calmer, and more productive sessions. The Pre-Mediation Parenting Reflection Workbook is a private thinking document, not a form. Nothing in it needs to be filled out, signed, or returned. It is for each parent, separately, in their own time, ahead of the joint session.
Pre-Mediation Parenting Reflection Workbook
A private thinking document for each parent to work through before the joint session. Covers time with the children, special days, major decisions, day-to-day life, money for the children, household practicalities, and how to handle change. Designed to surface what you already think, separately, so the joint session moves faster.
1. Parenting Plan (the flexible first option)
A Parenting Plan is a written agreement between parents about parenting arrangements. The term used in the Family Law Act 1975 is "Parenting Plan" (section 63C). For most amicable separations, this is the right place to land.
To be recognised under section 63C, a Parenting Plan must be:
- In writing
- Signed and dated by both parents
- Made free of threat, duress, or coercion
That is the legal threshold. There is no required format, no court filing, no lawyer required, and no fee. The plan can cover where the child lives, how time is divided, parental responsibility for major long-term decisions, communication, holidays, dispute-resolution procedures, and anything else relevant to the care, welfare, or development of the child.
Why parents choose this path first
A Parenting Plan can be updated at any time by mutual written agreement, as your children grow and circumstances change. There is no court application, no significant-change-in-circumstances threshold to meet, and no filing fee. This flexibility is the strongest reason to keep arrangements at the Plan level wherever both parents continue to communicate and act in good faith.
What a Parenting Plan cannot do. A Parenting Plan is not legally enforceable in the way a court order is. If the other parent stops following the agreed arrangements, you cannot apply to the court for a contravention order on the basis of the plan alone. The plan is recognised by the Act and a court is likely to consider its terms in any later proceedings, but it does not, by itself, give you a path to enforcement.
For most families this limitation is theoretical. For some, particularly where there is a history of one party not following through, the lack of enforceability is the reason to formalise the agreement as Consent Orders instead.
2. Consent Orders (when you want it locked in)
Consent Orders are court orders made by agreement. Both parents agree on the terms, file an Application for Consent Orders with the Federal Circuit and Family Court of Australia, and a Judicial Registrar reviews the application. Where the proposed orders are in the best interests of the children, the Registrar makes the orders without a hearing.
Once made, Consent Orders have the same legal force as orders made after a contested hearing. Breaching them carries real consequences. Changing them is deliberately harder than changing a Parenting Plan.
The Consent Orders path makes sense when:
- Both parents agree on the arrangements but want them legally enforceable
- One or both parents want the structure and certainty of a court order without the cost and conflict of a contested hearing
- The matter is complex enough that formal documentation will reduce future disputes
- There is a realistic concern that one party may not honour an informal agreement
A filing fee applies, and there may be additional legal costs if you have a lawyer draft the orders. The process from filing to approval typically takes a few weeks if the application is complete and the proposed orders are clearly in the child's best interests. There is no hearing for either parent to attend.
A common misconception
Consent Orders do not, by themselves, function as a recovery order. If the other parent withholds the child in breach of Consent Orders, you cannot rely on the Orders alone to require police action. You will still need to apply to the court for a recovery order. The advantage of having Consent Orders in this scenario is that the court already has parenting orders in place to enforce, which significantly speeds up the recovery process. Without any orders at all, you would be applying for parenting orders and a recovery order at the same time, which is slower and more complex.
3. Contested Parenting Orders (the path of last resort)
Where parents cannot agree, the Federal Circuit and Family Court can make parenting orders after a hearing. The judge considers evidence from both sides, often with a family report and sometimes with an Independent Children's Lawyer, and makes final orders based on the child's best interests.
This path is the most legally rigorous but also the most expensive, the most adversarial, and the slowest. Contested parenting matters can commonly take 18 to 36 months from filing to final hearing. Legal costs can typically reach tens of thousands of dollars per party. The toll on parents and children, beyond the cost, is significant.
Before a contested application can be filed, parents must in most cases attempt Family Dispute Resolution and obtain a Section 60I certificate from an accredited FDR practitioner. Exemptions apply in limited circumstances, including family violence and urgent matters.
If you or your children are not safe
If you are experiencing family violence, or are concerned about the safety of a child, support is available. The Get Help page lists national crisis and family violence services that operate independently of this practice. In immediate danger, call Triple Zero (000).
Attempt Family Dispute Resolution
Parties make a genuine attempt at FDR and obtain a Section 60I certificate before applying for contested parenting orders. The step the law expects in most cases. Exemptions apply for family violence, child abuse, urgent matters, and where the matter is genuinely not appropriate for FDR.
Pre-action stepFile an Initiating Application
The applicant files with the court, setting out the orders sought. The other party files a Response. Both parties file financial statements and other required documents.
First return date and case management
The matter is listed for a directions hearing. The court manages progression: ordering family reports, appointing an Independent Children's Lawyer where appropriate, and directing parties toward mediation or hearing.
Interim orders
Where parties cannot agree on arrangements while the matter is proceeding, the court can make interim parenting orders. These can remain in place for many months while the matter is finalised.
Family report
A family consultant may prepare a family report involving interviews with both parents and children. These reports carry significant weight in contested proceedings.
Final hearing
Both parties give evidence and are cross-examined. The judge applies the best-interests framework in section 60CC of the Family Law Act and makes final orders.
18 to 36 months typicalThe best-interests framework that applies to all three paths
Whether parents are agreeing privately to a Parenting Plan, asking the court to approve Consent Orders, or in a contested hearing, the same legal framework governs what the arrangements should look like. Section 60CC of the Family Law Act, as amended in May 2024, requires that the child's best interests are the paramount consideration. The court works through six general factors to assess what those best interests require. The 2024 amendments also removed the presumption of equal shared parental responsibility, simplified the best-interests test, and strengthened the focus on safety where family violence is present.
Safety of the child and carers
What arrangements promote safety from family violence, abuse, neglect, or other harm. Where genuine risk exists, the obligation to protect the child outweighs the benefit of maintaining a relationship with both parents. The Family Law Amendment Act 2024, in force from 10 June 2025, expanded the definition of family violence in section 4AB to expressly include economic and financial abuse.
The child's own views
Any views expressed by the child, considered in light of their age, maturity, and the circumstances in which those views were formed. Weight given to a child's views generally increases with age and maturity.
Developmental, psychological, emotional and cultural needs
What this particular child, at this stage of life, needs to thrive. Courts look at the child as an individual, not a generic child of their age.
Each parent's capacity to meet those needs
The practical capacity of each parent to provide for the child's identified needs. An assessment of capability, not character. Available time, stability, and the quality of the parent-child relationship.
Benefit of the child's relationships with parents and significant others
The benefit to the child of being able to have a relationship with both parents, and other people who are significant to them, where it is safe to do so. Since May 2024, the presumption of equal shared parental responsibility no longer applies, and this factor does not have elevated status relative to other considerations.
Anything else relevant to this child's circumstances
A catch-all allowing the court to consider any factor relevant to the particular family. No two families are the same, and rigid formulas fail children whose circumstances fall outside standard patterns.
When a parenting order is breached
This section is about Consent Orders and contested Parenting Orders. A Parenting Plan is not enforceable in the same way and the framework below does not apply to plans.
A common misconception is that breaching a parenting order triggers automatic police intervention. It does not. The affected parent must apply to the court for a contravention order. The court then determines whether a breach occurred, whether the breaching party had a reasonable excuse, and what consequence is appropriate.
Recovery orders
A recovery order is a separate court order that authorises police or other officers to find, recover, and deliver a child to a person entitled to care of the child. A recovery order is sought when a child has been unlawfully withheld or taken.
The court can make a recovery order with or without an existing parenting order, though existing orders typically speed up the process. This is one of the practical reasons parents with a real risk of a child being withheld choose Consent Orders rather than relying on a Parenting Plan.
- If you have Consent Orders or contested parenting orders and the other parent withholds the child in breach, you can apply to the court for a recovery order. Having the parenting orders already in place generally makes this faster.
- If you have only a Parenting Plan (or no formal arrangements), you can still apply for a recovery order, but you must apply for parenting orders at the same time. The court is unlikely to make a recovery order without parenting orders that define the care arrangements.
- The court is not a child-recovery agency. Where the court makes a recovery order, it is the responsibility of the applicant and police to act on it. State or territory police typically execute recovery orders, with the Australian Federal Police involved in interstate or international matters.
Changing arrangements over time
Children grow. Circumstances change. The right arrangement at age four is rarely the right arrangement at age fourteen. How easy it is to change the arrangements depends on which path you are on.
This is one of the strongest reasons to keep arrangements at the Parenting Plan level wherever both parents continue to communicate well. Court-made parenting orders, including Consent Orders, are designed to provide stability, which means they are designed to be difficult to change. Where genuine flexibility matters more than enforceability, a Parenting Plan is almost always the right answer.
Grandparents and other significant persons
Parenting arrangements are not limited to the legal parents. Section 65C of the Family Law Act gives standing to apply for parenting orders to a grandparent or any other person concerned with the care, welfare, or development of the child. In practice, applications from non-parents are most common from grandparents who have been substantially involved in raising the child, or from step-parents in long-established relationships.
The same best-interests framework in section 60CC applies. The court does not give automatic preference to biological parents over non-parents where the non-parent has been a primary caregiver. The arrangements that promote the child's best interests are the arrangements the court will make.
Where grandparents or other significant persons want to be included in a Parenting Plan or Consent Orders, this can usually be addressed during FDR alongside the parents' agreements about parenting arrangements.
When you genuinely need a lawyer
FDR practitioners are not lawyers and do not give legal advice. There are situations where independent legal advice is not optional. You should obtain legal advice:
- Before signing Consent Orders, so you understand what you are agreeing to and how it will be enforced
- Before commencing any contested court proceedings
- If you are served with an application for parenting orders
- If you are considering applying for a recovery order, particularly if there is no parenting order in place
- If there are urgent safety concerns about your child, including suspected abduction or relocation without consent
Legal Aid may be available in family law matters depending on your circumstances and state or territory.
Our role
We are accredited Family Dispute Resolution Practitioners. Our role is to help separating parents reach their own agreements, which most commonly means working through a Parenting Plan or the basis for Consent Orders. We can also issue Section 60I certificates where the process has been properly completed. If your situation has moved beyond the point where FDR is appropriate, or if you need legal representation, we will tell you that directly.